Heraldic imitation
In 2019, the companies behind the trademarks Forever Vintage, Mobility Era and Slutte were told by BOIP that their logos could not be registered. Reason: it contains a flag! According to the Paris Convention, not only are exact copies of flags prohibited, even a “heraldic imitation” of the flag is not allowed. What exactly constitutes a “heraldic imitation” of a flag is nowhere stated, but BOIP explained it strictly.
New applications
For these entrepreneurs, therefore, there was little choice but to incur long-winded costs for a new application, omitting the flag. Thus, they eventually got the desired protection after all, albeit without the flag
New policy
However, during an interesting webinar at the end of September 2023, BOIP announced that it has now adjusted its strict flag policy. Based on the law and jurisprudence, BOIP came to the conclusion that if you want to speak of a ‘heraldic imitation’ of a flag, it must really resemble a flag. The shape (rectangle) and proportions (2:3) of the flag play an important role. If the colors of the flag are used, but the element no longer resembles a flag, the trademark can be registered.
Form differs
On the basis of these criteria, the above trademarks, which would previously have been refused registration, now received their registration without problems. The colors used are of course taken from the Italian, Belgian and Dutch flags. But the shape differs from that of a flag to such an extent that one cannot speak here of a “heraldic imitation. Interesting! That suddenly opens up a lot more room for trademark owners. According to BOIP, the European trademark office EUIPO looks at flags in trademarks in the same way.
Small or slightly different doesn’t help
If you do creep close to the shape of a flag, there is still a good chance that your mark will be rejected. This does not even have to involve the exact flag shape. Even with minor deviations from the basic shape of a flag, it will still be seen as a prohibited “heraldic imitation” and you can count on a refusal. For example, despite the flag being almost square here, the EXPAT mark above was still refused. Nor does it help to depict the flag very small: if it looks like a flag, you’re screwed, like the Belgian bag of French fries or the Italian restaurant Da Giorgio.
Bas Kist
